R (A) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CALVERT-SMITH |
| Judgment Date | 07 December 2006 |
| Neutral Citation | [2006] EWHC 3331 (Admin) |
| Date | 07 December 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5328/2006 |
[2006] EWHC 3331 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Calvert-Smith
CO/5328/2006
MR R DRABBLE QC and MR G DENHOLM (instructed by Clore and Company Solicitors, London W14 9PP) appeared on behalf of the CLAIMANT
MR N GIFFIN QC and MR N SHELDON (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
The claimant in this case seeks to challenge the legality of his detention by the defendant. The claimant is a national of Somalia and is now 31 years old. He first arrived in this country on 7 May 1995 when he would have been 19. He claimed asylum soon afterwards. His claim was refused, but he was eventually granted exceptional leave to remain until February 2000. However, on 23 July 1998 he was convicted of offences of rape and indecency with a child and sentenced to a total of eight years' imprisonment. He has been in custody ever since.
In December 2001 the defendant sought reasons from the claimant why he should not be deported and on 21 May 2002 the defendant issued a Reasons for Deportation letter. Under the provisions of the legislation then in force, the Criminal Justice Act 1991, the claimant became eligible for consideration for release at the half-way point of his sentence. This fell on 28 May 2002. On the previous day the defendant issued an Authority for Detention until the making of a deportation order. On
July 2002, the claimant appealed against the deportation order and made a fresh claim for asylum. On 26 July 2002, following receipt of the appeal papers, and in view of the then impossibility of arranging removals to Somalia, an officer of the defendant suggested consideration of release on restricted bail.
In September 2002 it was established that this claimant was from Mogadishu, but a member of the Isaaq clan. On 20 December 2002, he applied for bail and was refused. In January and February 2003 reports were prepared with a view to his being assessed for parole. They were not encouraging. The claimant's appeal against the deportation order and the fresh claim for asylum was refused on 26 June 2003. On 4 July 2003, a memorandum of understanding was signed which was designed to facilitate the return of failed asylum seekers to Somaliland, not Somalia, of which more later. No one in fact, with the possible exception of a family in respect of whom there are now no paper records, has been returned pursuant to that memorandum of understanding to date, although it appears a number of attempts were made.
On 3 September 2003, the defendant's sentence reached a point at which release became automatic. On any view therefore, the only reason for his being in detention since then has been the authority of 27 May 2002 and the desire of the defendant to remove the claimant. On 25 November 2003, the claimant's appeal to the adjudicator against the decisions on deportation and asylum on the basis that he could safely relocate to Somaliland were pronounced. On 4 December 2003, his appeal rights were therefore exhausted and nothing remained to prevent his removal to Somalia, or indeed Somaliland, if it could be arranged. Unfortunately it could not.
There have been many problems with effecting the removal of persons to Somalia. From February to August 2004 there was a period when such removals were possible. On 19 April 2004, the claimant was served with a deportation order. A documentation interview was arranged for 21 May 2004. Other efforts were made to obtain sufficient information for it to be possible to remove the complainant. In the end they proved fruitless.
In September 2004 there is a minute from one section of the Immigration Nationality Department to the effect that another section had "forgotten the case". Efforts then restarted on the possible basis of an EU letter travel document, but it soon became clear that this too was not going to be possible.
In October 2004 efforts were made to see, for the first time, whether the claimant would himself consent to voluntary removal. Of course, the opportunity had always existed for the claimant who has, as the court understands it, been legally represented pretty well throughout the whole period, to apply for such removal himself, but this seems to be the first time that the defendants made a direct approach. Be that as it may, he refused the offer and in November 2004, when he was formally asked to sign a disclaimer to the effect that he would be prepared to return to Somalia voluntarily, he refused and has done so in various ways subsequently and maintains that position today.
On 20 December 2004, the claimant applied for, but was refused, bail by a Chief Immigration Officer. In March 2005 the claimant made further representations for asylum. In September 2005 those further representations were rejected by the defendant. On 11 October 2005, bail was again refused. I shall have cause to refer to this hearing later, but at that hearing the immigration judge was informed by the defendant's representative that removals were possible in the foreseeable future to Somalia, which at the time was not the case. Monthly reviews of the claimant's case were carried out until the beginning of February 2006. Continuing detention was authorised with varying degrees of hesitation by those responsible due to the combination of the difficulty of effecting removal, the length of the detention and of course the contention, which I shall deal with in detail later, that the detention was "self-induced". From February 2006 to June 2006, apparently through pressure of work, no such reviews were carried out.
In April 2006 efforts were resumed which have since borne fruit to open the way to both voluntary and forced deportations to Somalia. Further efforts to persuade the claimant to return voluntarily have been unsuccessful. These proceedings were issued in June 2006. Permission was granted at an oral hearing on 25 September 2006 and bail was refused. Since that date forced returns to Somalia have started again and removal directions were set for this claimant for 29 November 2005. The claimant has applied for permission to judicially review that decision and removal directions were cancelled pending a decision on that application. It was agreed before me by both sides that since the decision to remove on the 29th was no longer effective it would be inappropriate for me to decide that application for permission. However in the course of argument concerning the legality of the detention I heard submissions from counsel on both sides as to the arguments which are likely to be addressed in that new application, since they impinge on the ultimate decision in this case: whether now to order the claimant's release on bail.
The claimant submits in summary that the time which the court should consider as the time during which the claimant has been detained as a potential deportee began to run on 28 May 2002, following the authority signed the previous day and his earliest date for parole on his sentence of eight years. He further submits that even if he is wrong as to the date when time begins to run, and that it runs from 3 September 2003 when he became entitled to automatic release without parole, it is now at least three years and three months since the sole ground for his detention has been the hoped-for removal to Somalia. He submits that the delay, the combination of the difficulties with effecting removal to Somalia, and what he submits has been dilatory or worse behaviour by the defendant during that time in respect of his case, has made the claimant's detention unlawful. Further he submits that although the refusal of the claimant to accept voluntary removal is a relevant factor, it does not have the fundamental or potentially decisive significance attached to it by the defendant.
Finally, that whatever the position to date, and in spite of recent developments which have culminated in the defendant being in a position forcibly to remove this claimant last week, there is in fact no realistic prospect of the defendant even now being able to remove this claimant, whether voluntarily or not, in the near future and so his continued detention is still unlawful.
In reply the defendant submits in summary that the claimant as a failed asylum seeker, whose presence in this country is undesirable both for that reason and because of his conviction for serious crimes, must be detained since his release would defeat the purpose both of the lengthy proceedings which resulted from his claims for asylum, and the correct decision that he should be removed as the result of his criminal convictions. He submits that the fear that the claimant would abscond if granted bail on any terms at all is a very real one and justifies his continuing detention.
Further he submits that detention is justified, in any event because since he could have been returned voluntarily at any time, such returns having been effected during the period of his detention. His failure to agree to be returned voluntarily means that he is the author of his own misfortune, such failure being almost, if not quite, a trump card, as it were, in the defendant's hand.
Finally, that so far as the future is concerned the claimant could be removed at once. Thus his continuing detention is now solely due to his own wish, that is the claimant's wish to remain in this country, and he cannot now complain that his detention...
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